Republicans set their sights on the EPA’s science

The federal agency that regulates our environment may soon have less data to work with.

Federal regulatory changes can be about as interesting to ponder as drying paint. Of course, federal regulations also are the reason that drying paint is lead-free in this country.

Now, the way that the U.S. makes many federal environmental regulations may be changing. In March, the House passed two bills aimed at defanging the Environmental Protection Agency, largely along party lines.

The first, House Bill 1430 – named the HONEST Act – would challenge the EPA’s access to scientific data. The second, House Bill 1431 – named the EPA Science Advisory Board Reform Act of 2017 – would replace scientists and public health experts on its advisory panel with industry members and politicians. Both bills are now in the Senate Committee on Environment and Public Works. Previous versions passed the House in 2014 and 2015, but stalled in the Senate, with former President Barack Obama threatening to veto. It’s unlikely President Donald Trump would do the same.

Both bills have researchers and environmentalists worried about these questions:

1. What data will the EPA be allowed to use?

In a press release, House Science, Space, and Technology Committee Chairman Rep. Lamar Smith, R-Texas, who sponsored the first bill, described it as an effort to bring transparency to the EPA’s work. “This bill would prohibit any future regulations from taking effect unless the underlying scientific data is public,” Smith said. If it passes, the EPA would no longer be able to base regulations on data that hasn’t been made publicly available.

For more than a decade, there’s been a growing movement among scientists to make data and research papers publicly available, too. “Everyone likes the principle of open access, of giving people more information,” says Paul Westerhoff, founding director of the School of Sustainable Engineering and the Built Environment at Arizona State University. “People want to make their data more available, more impactful.” But most reputable research is still published in journals with paywalls; data are stored digitally by researchers, institutes, or businesses. “The EPA doesn’t have the data, ” says Andrew Bergman, a member of the Environmental Data and Governance Initiative’s steering committee and a graduate student in applied physics at Harvard University. It’s owned by outside researchers, universities – and private companies.

The push to make public health data available also worries advocates of patient privacy. Kyla Bennett, who worked at the EPA for 10 years as a wetland permit reviewer and today works for the Public Employees for Environmental Responsibility (PEER), says that House Bill 1430 runs up against patient confidentiality. “A lot of [the EPA’s] decisions are based on human health-related issues – for example air quality and asthma, or lead in drinking water,” Bennett says. Many of these studies are confidential under federal laws, such as the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which establishes how to conduct research while protecting patient rights.

Under House Bill 1430, anyone can access data used in research that the EPA references, including personally identifiable information from medical research, as long as the person accessing information signs a confidentiality agreement. Bennett says that much of the data the EPA relies on will become unavailable to the agency, because it won’t comply with the new law and existing federal patient privacy law.

The business community also may balk at data-sharing requirements, which could prevent the EPA from research such as pesticide studies.

2. What about data you can’t reproduce?

House Bill 1430 requires the EPA to use data that’s reproducible. That caveat concerns some of the bill’s critics. “In laboratory sciences, reproducibility is demanded and expected,” Bergman says. But in environmental sciences and public health, it’s often impossible. As an example, Bergman points to the radioactive contaminant standards in use today, which are based on studies done of people exposed to radiation by the bombings of Nagasaki and Hiroshima. “Those are absolutely not reproducible studies,” Bergman says. “That’s a cohort we hope never exists again.”

New Orleans one day after Hurricane Katrina's arrival.

Jocelyn Augustino/FEMA

More recently, researchers studied the human health effects of contaminated drinking water following Hurricane Katrina. “A lot of toxic chemicals got into the water supply, and people were drinking it, because it was all they had,” Bennett says. “We can’t reproduce that.”

Likewise, studies of environmental disasters such as BP’s 2010 Deepwater Horizon oil spill are not reproducible, Bennett says. If the bill becomes law, Bennett worries the EPA would have to ignore such data sets.

3. What is the ‘best available science?’

House Bill 1430 requires the EPA to use the “best available science” to support its actions. This concept has some scientists worried. “Best available science” isn’t a defined legal or scientific concept. Bergman points out that an anti-regulation EPA administrator could argue about whether the “best available science” was being implemented, overriding the peer review process and the expertise of the EPA’s Science Advisory Board.

Bennett says that the concept of “best available science” could be particularly politicized around issues such as climate change, and lead agency officials to cherry pick data. For example, with climate change, while 97 percent of researchers say it’s real, the EPA could give disproportionate weight to the remaining 3 percent.

4. How much will it cost?

House Bill 1430 caps spending for its implementation at $1 million, to be taken from other EPA funding sources. But some EPA staff estimated its actual cost at $250 million per year, a number that the EPA’s upper administration withheld from the Congressional Budget Office. When Bloomberg News revealed the omission, Sen. Tom Carper, D-Delaware, the ranking member of the Senate Committee on Environment and Public Works, requested all documents related to the bill. Carper intends to review both EPA staff’s analysis of 1430 and evidence that bill sponsors suppressed EPA staff opinions of the legislation.

According to the CBO, the bill’s budget estimate works if the EPA uses only studies that already meet the bill’s transparency and reproducibility requirements. The agency would need funding mainly to check that any new studies researchers wanted to reference were publicly available already. If not, the EPA simply wouldn’t use the information in its work. The CBO notes this would significantly cut the number of studies used to support EPA actions.

But EPA staffers took a more comprehensive approach, estimating the cost of carrying out the legislation’s mandates to make all relevant studies accessible, including all data, the code used to analyze it and explanations of how to use all of it, as required by House Bill 1430.

5. Who’s giving the EPA advice?

House Bill 1431 would change the composition of the EPA’s Science Advisory Board (SAB), which advises the EPA administrator on the science behind the issues that the agency manages. Scientists currently using EPA grant money couldn’t participate in the SAB, and SAB participants couldn’t apply for EPA grants for three years after serving on the board – likely resulting in the inclusion of more industry members. The legislation does not prevent industry members who may have a financial stake in EPA decisions from serving on the SAB, as long as they disclose their affiliations.

In effect, the bill precludes the participation of scientists whose ongoing work is relevant to the question under review. “We would argue that the SAB should be composed of experts who are well versed on the topics they would be advising the EPA on,” says Genna Reed, a science and policy analyst with the Union of Concerned Scientists. “A lot of times those scientists have published on those issues, which is not surprising.”

Westerhoff, an expert on nanomaterials and drinking water who took part in an advisory panel related to hydraulic fracturing, or fracking, would have been excluded because of his EPA grant funding, although he does not research fracking.

“There was a very extensive series of conditions that we already signed on to at the beginning of the process,” Westerhoff says. The EPA even looked at what stocks he and his wife each owned. After serving on the panel, Westerhoff was unable to talk to the press, publish anything related to fracking, or apply for funding from the EPA related to fracking for several years.

6. How will the public participate?

SAB meetings are open to the public already. Under House Bill 1431, the EPA would address the public’s comments about its questions for the SAB before asking those questions of the SAB. The SAB would address any public comments about EPA questions, too. There would be no limits on the time period for public comments on the SAB’s work; comments would be published in the Federal Register. Before conducting major advisory activities, the SAB would explain the “state of the science” at a public information-gathering session.

The bill also would change how the SAB counts public comments. According to Reed, the agency would count all copies of form letters and electronic petitions from individuals as one single comment. “Not everyone has the time or resources to write up a unique comment or go to a listening session or otherwise take part in the EPA’s SAB process,” says Reed.